TN 4 (09-16)

PR 05845.055 Wisconsin

A. PR 16-129 Same-Sex Marriage in New York and Non-Marital Legal Relationship

Date: May 10, 2016

1. Syllabus

The number holder (NH) and claimant entered into a non-marital legal relationship (NMLR), i.e., domestic partnership in Wisconsin in August 2013 and later married in New York in May 2014. The NH died in September 2014 domiciled in Wisconsin. To establish a relationship as the NH’s widow(er), the claimant must either demonstrate a valid same-sex marriage or show that the NH’s domicile at the time of death would allow the claimant to inherit a spouse’s share of the NH’s personal property. In addition, the claimant must show that the relationship lasted for at least nine months immediately preceding the NH’s death. In this case, the domestic partnership between the NH and the claimant was valid in Wisconsin at the time it was established in 2013. In Wisconsin, domestic partners are given spousal inheritance rights. Subsequently, the couple entered into a same-sex marriage in New York in 2014. Because their marriage occurred after 2011, when New York permitted same-sex marriage, the agency presumes that the marriage was valid as of the date it was celebrated, without regard to whether Wisconsin recognized same-sex marriage at the time of the NH’s death.

Neither relationship, by itself, meets the duration requirement, the marriage lasted only four months and the domestic partnership, while lasting nine months, did not immediately precede the NH’s death because it is considered to have terminated on the date of their marriage. However, the agency may combine the couple’s NMLR and same-sex marriage, since both relationships qualify as marriages for benefit purposes and they were consecutive. Therefore, the duration-of-marriage requirement for surviving spouse’s benefits has been met. The claimant should be considered the NH’s spouse for benefit purposes based on combining the time the couple was in a valid domestic partnership and same-sex marriage.

2. Opinion

QUESTION

You asked whether the claimant, J~, is entitled to benefits as the surviving spouse of the number holder (NH), J2~, who died while domiciled in Wisconsin. The couple entered into a domestic partnership in Wisconsin and later a same-sex marriage in New York. For the reasons discussed below, we conclude that the claimant should be considered the NH’s spouse for Title II benefit purposes based on their domestic partnership and same-sex marriage in combination. Therefore, you may find that the claimant is entitled to surviving spouse’s benefits.

BACKGROUND

The claimant and the NH entered into a domestic partnership in Wisconsin in August 2013. In May 2014, the couple married in New York. The evidence includes a copy of their declaration of domestic partnership from the Wisconsin Vital Records Office and their certificate of marriage registration issued by the New York Department of Health.

The NH died in September 2014. At the time of his death, the NH was domiciled in Wisconsin. The claimant has filed an application for surviving spouse’s benefits on the NH’s record.

DISCUSSION

Under Title II of the Social Security Act (the Act), a claimant may be entitled to benefits as the widower of an insured individual who died fully insured. See Sections 202(f), 216(g) of the Act; see also 20 C.F.R. § 404.335; POMS RS 00207.001A.1, GN 00210.001A (SSA recognizes same-sex marriages for benefit purposes). As relevant here, to establish a relationship as the insured’s widower, the claimant must either demonstrate a valid same-sex marriage, or show that the NH’s domicile at the time of death would allow the claimant to inherit a spouse’s share of the NH’s personal property. See Section 216(h)(1)(A)(i) of the Act; 20 C.F.R. §§ 404.345, 404.723; POMS GN 00210.002A, GN 00210.004A. In addition, the claimant must show that the required relationship lasted for at least nine months immediately preceding the NH’s death.1 See Section 216(g)(1)(E) of the Act; 20 C.F.R. § 404.335(a)(1); POMS RS 00207.001A.1.a.2, GN 00210.100B.3.c., GN 00305.100A.1.

1. The agency should recognize both the claimant’s domestic partnership and same-sex marriage to the NH for benefit purposes.

As noted above, the claimant and the NH first entered into a domestic partnership in Wisconsin. With respect to this and other non-marital legal relationships (NMLR), the agency considers the claimant to be the NH’s spouse for benefit purposes when: (1) the NMLR was valid in the state where it was established, and (2) the state of the NH’s domicile would allow the claimant to inherit a spouse’s share of the NH’s personal property should the NH die intestate. See POMS GN 00210.004C. Here, the domestic partnership between the claimant and the NH was valid in Wisconsin at the time it was established in 2013. See Wis. Stat. § 770.001 et seq.; POMS GN 00210.004D. And in Wisconsin, where the NH was domiciled, domestic partners are given spousal inheritance rights. See Wis. Stat. § 852.01(1)(a); POMS GN 00210.004D. Thus, the agency should treat the claimant’s NMLR as a marital relationship for Title II benefit purposes.

The claimant and the NH subsequently entered into a same-sex marriage in New York in 2014. Because their marriage occurred after 2011, when New York permitted same-sex marriage, the agency presumes that the marriage was valid as of the date it was celebrated, without regard to whether Wisconsin recognized same-sex marriage at the time of the NH’s death. See N.Y. Domestic Relations Law § 10-a; POMS GN 00210.002A, 00210.003. Thus, the agency should also recognize the claimant’s same-sex marriage for benefit purposes.

2. The claimant meets the duration-of-marriage requirement.

As mentioned above, to be eligible for surviving spouse’s benefits, the claimant’s NMLR and/or marriage to the NH must also meet the nine-month duration requirement. See POMS GN 00210.004E.1.a, GN 00210.100B.3.c. Here, the couple entered into a Wisconsin domestic partnership in August 2013, and were validly married in New York in May 2014. The NH died in September 2014. Neither relationship, by itself, meets the duration requirement—the marriage lasted only four months, and the domestic partnership, while lasting nine months, did not immediately precede the NH’s death because it is considered to have terminated on the date of their marriage. See Wis. Stat. § 770.12(4)(b) (“If a party to a domestic partnership enters into a marriage that is recognized as valid in this state, the domestic partnership is automatically terminated on the date of the marriage.”); POMS GN 00210.003A (“All states must permit same-sex marriage and recognize valid same-sex marriages from other states.”).

The agency, however, may combine the couple’s NMLR and same-sex marriage, since both relationships qualify as marriages for benefit purposes and they were consecutive. See POMS GN 00210.004E.2. And, the domestic partnership and marriage in combination lasted more than nine months immediately preceding the NH’s death. Therefore, the duration-of-marriage requirement for surviving spouse’s benefits has been met.

CONCLUSION

For the reasons discussed above, we conclude that the claimant should be considered the NH’s spouse for benefit purposes based on their domestic partnership and same-sex marriage in combination. Assuming that the claimant has satisfied the other statutory and regulatory requirements, he is entitled to surviving spouse’s benefits on the NH’s record.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Cristine Bautista

Senior Counsel


Footnotes:

[1]

. To be entitled to widower’s benefits, the claimant must also meet all other requirements of sections 202(f) and 216(g) of the Act. See also 20 C.F.R. § 404.335; POMS RS 00207.001A.1.


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PR 05845.055 - Wisconsin - 09/20/2016
Batch run: 09/20/2016
Rev:09/20/2016